STATE OF NEW YORK
________________________________________________________________________
9019--A
IN SENATE
June 14, 2018
___________
Introduced by Sens. BOYLE, GRIFFO -- read twice and ordered printed, and
when printed to be committed to the Committee on Rules -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the penal law, the criminal procedure law, the family
court act and the civil rights law, in relation to establishing the
crime of unlawful dissemination or publication of an intimate image
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new section 245.15 to
2 read as follows:
3 § 245.15 Unlawful dissemination or publication of an intimate image.
4 1. A person is guilty of unlawful dissemination or publication of an
5 intimate image when:
6 (a) with intent to cause material harm to the emotional, financial or
7 physical welfare of another person, he or she intentionally disseminates
8 or publishes a still or video image of such other person, who is iden-
9 tifiable from the still or video image itself or from information
10 displayed in connection with the still or video image, without such
11 other person's consent, which depicts:
12 (i) an unclothed or exposed intimate part of such other person; or
13 (ii) such other person engaging in sexual conduct as defined in subdi-
14 vision ten of section 130.00 of this chapter with another person; and
15 (b) such still or video image was taken under circumstances when the
16 person depicted had a reasonable expectation of privacy and the actor
17 knew or reasonably should have known the person depicted intended for
18 the still or video image to remain private indefinitely, regardless of
19 whether the actor was present when the still or video image was taken.
20 2. For purposes of this section "intimate part" means the naked geni-
21 tals, pubic area, anus or female nipple of the person.
22 2-a. For purposes of this section "disseminate" and "publish" shall
23 have the same meaning as defined in section 250.40 of this title.
24 3. This section shall not apply to the following:
25 (a) the reporting of unlawful conduct;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16264-09-8
S. 9019--A 2
1 (b) dissemination or publication of an intimate image made during
2 lawful and common practices of law enforcement, legal proceedings or
3 medical treatment;
4 (c) images involving voluntary exposure in a commercial setting;
5 (d) dissemination or publication of an intimate image made for a
6 legitimate public purpose;
7 (e) providers of an interactive computer service for images provided
8 by another person. For purposes of this subdivision, "interactive
9 computer service" shall mean: any information service, system or access
10 software provider that provides or enables computer access by multiple
11 users to a computer server, including specifically a service or system
12 that provides access to the internet and such systems operated or
13 services offered by libraries or educational institutions.
14 Unlawful dissemination or publication of an intimate image is a class
15 A misdemeanor.
16 § 2. The opening paragraph of subdivision 1 of section 530.11 of the
17 criminal procedure law, as amended by section 4 of part NN of chapter 55
18 of the laws of 2018, is amended to read as follows:
19 The family court and the criminal courts shall have concurrent juris-
20 diction over any proceeding concerning acts which would constitute
21 disorderly conduct, unlawful dissemination or publication of an intimate
22 image, harassment in the first degree, harassment in the second degree,
23 aggravated harassment in the second degree, sexual misconduct, forcible
24 touching, sexual abuse in the third degree, sexual abuse in the second
25 degree as set forth in subdivision one of section 130.60 of the penal
26 law, stalking in the first degree, stalking in the second degree, stalk-
27 ing in the third degree, stalking in the fourth degree, criminal
28 mischief, menacing in the second degree, menacing in the third degree,
29 reckless endangerment, strangulation in the first degree, strangulation
30 in the second degree, criminal obstruction of breathing or blood circu-
31 lation, assault in the second degree, assault in the third degree, an
32 attempted assault, identity theft in the first degree, identity theft in
33 the second degree, identity theft in the third degree, grand larceny in
34 the fourth degree, grand larceny in the third degree, coercion in the
35 second degree or coercion in the third degree as set forth in subdivi-
36 sions one, two and three of section 135.60 of the penal law between
37 spouses or former spouses, or between parent and child or between
38 members of the same family or household except that if the respondent
39 would not be criminally responsible by reason of age pursuant to section
40 30.00 of the penal law, then the family court shall have exclusive
41 jurisdiction over such proceeding. Notwithstanding a complainant's
42 election to proceed in family court, the criminal court shall not be
43 divested of jurisdiction to hear a family offense proceeding pursuant to
44 this section. For purposes of this section, "disorderly conduct"
45 includes disorderly conduct not in a public place. For purposes of this
46 section, "members of the same family or household" with respect to a
47 proceeding in the criminal courts shall mean the following:
48 § 3. The opening paragraph of subdivision 1 of section 812 of the
49 family court act, as amended by section 5 of part NN of chapter 55 of
50 the laws of 2018, is amended to read as follows:
51 The family court and the criminal courts shall have concurrent juris-
52 diction over any proceeding concerning acts which would constitute
53 disorderly conduct, unlawful dissemination or publication of an intimate
54 image, harassment in the first degree, harassment in the second degree,
55 aggravated harassment in the second degree, sexual misconduct, forcible
56 touching, sexual abuse in the third degree, sexual abuse in the second
S. 9019--A 3
1 degree as set forth in subdivision one of section 130.60 of the penal
2 law, stalking in the first degree, stalking in the second degree, stalk-
3 ing in the third degree, stalking in the fourth degree, criminal
4 mischief, menacing in the second degree, menacing in the third degree,
5 reckless endangerment, criminal obstruction of breathing or blood circu-
6 lation, strangulation in the second degree, strangulation in the first
7 degree, assault in the second degree, assault in the third degree, an
8 attempted assault, identity theft in the first degree, identity theft in
9 the second degree, identity theft in the third degree, grand larceny in
10 the fourth degree, grand larceny in the third degree, coercion in the
11 second degree or coercion in the third degree as set forth in subdivi-
12 sions one, two and three of section 135.60 of the penal law between
13 spouses or former spouses, or between parent and child or between
14 members of the same family or household except that if the respondent
15 would not be criminally responsible by reason of age pursuant to section
16 30.00 of the penal law, then the family court shall have exclusive
17 jurisdiction over such proceeding. Notwithstanding a complainant's
18 election to proceed in family court, the criminal court shall not be
19 divested of jurisdiction to hear a family offense proceeding pursuant to
20 this section. In any proceeding pursuant to this article, a court shall
21 not deny an order of protection, or dismiss a petition, solely on the
22 basis that the acts or events alleged are not relatively contemporaneous
23 with the date of the petition, the conclusion of the fact-finding or the
24 conclusion of the dispositional hearing. For purposes of this article,
25 "disorderly conduct" includes disorderly conduct not in a public place.
26 For purposes of this article, "members of the same family or household"
27 shall mean the following:
28 § 4. The civil rights law is amended by adding a new section 52-b to
29 read as follows:
30 § 52-b. Private right of action for unlawful dissemination or publica-
31 tion of an intimate image. 1. a. Any website or internet service provid-
32 er that hosts or transmits a still or video image, viewable in this
33 state, taken under circumstances where the person depicted had a reason-
34 able expectation of privacy, which depicts:
35 (i) an unclothed or exposed intimate part, as defined in section
36 245.15 of the penal law, of a resident of this state; or
37 (ii) a resident of this state engaging in sexual conduct as defined in
38 subdivision ten of section 130.00 of the penal law with another person;
39 and
40 b. Such still or video image is hosted or transmitted without the
41 consent of such resident of this state, shall be subject to personal
42 jurisdiction in a civil action in this state to the maximum extent
43 permitted under the United States constitution and federal law.
44 2. Regardless of whether or not the original still or video image was
45 consensually obtained, a person depicted in a still or video image shall
46 have a cause of action against an individual who, for the purpose of
47 harassing, annoying or alarming such person, disseminated or published,
48 or threatened to disseminate or publish, such still or video image,
49 where such image:
50 a. was taken when such person had a reasonable expectation of privacy;
51 and
52 b. depicts (i) an unclothed or exposed intimate part of such person;
53 or (ii) such person engaging in sexual conduct, as defined in subdivi-
54 sion ten of section 130.00 of the penal law, with another person; and
55 c. was disseminated or published, or threatened to be disseminated or
56 published, without the consent of such person.
S. 9019--A 4
1 3. In any action commenced pursuant to subdivision two of this
2 section, the finder of fact, in its discretion, may award injunctive
3 relief, punitive damages, compensatory damages and reasonable court
4 costs and attorney's fees.
5 4. This section shall not apply to the following:
6 a. the reporting of unlawful conduct;
7 b. dissemination or publication of an intimate still or video image
8 made during lawful and common practices of law enforcement, legal
9 proceedings or medical treatment;
10 c. images involving voluntary exposure in a commercial setting; or
11 d. dissemination or publication of an intimate still or video image
12 made for a legitimate public purpose.
13 5. Any person depicted in a still or video image that depicts an
14 unclothed or exposed intimate part of such person, or such person engag-
15 ing in sexual conduct as defined in subdivision ten of section 130.00 of
16 the penal law with another person, which is disseminated or published
17 without the consent of such person and where such person had a reason-
18 able expectation of privacy, may maintain an action or special proceed-
19 ing for a court order to require any website or internet service provid-
20 er that is subject to personal jurisdiction under subdivision one of
21 this section to permanently remove such still or video image.
22 6. A cause of action or special proceeding under this section shall be
23 commenced the later of either:
24 a. three years after the dissemination or publication of an image; or
25 b. one year from the date a person discovers, or reasonably should
26 have discovered, the dissemination or publication of such image.
27 7. Nothing herein shall be read to require a prior criminal complaint,
28 prosecution or conviction to establish the elements of the cause of
29 action provided for by this section.
30 8. The provisions of this section are in addition to, but shall not
31 supersede, any other rights or remedies available in law or equity.
32 9. If any provision of this section or its application to any person
33 or circumstance is held invalid, the invalidity shall not affect other
34 provisions or applications of this section which can be given effect
35 without the invalid provision or application, and to this end the
36 provisions of this section are severable.
37 § 5. This act shall take effect on the sixtieth day after it shall
38 have become a law; provided, however, that:
39 (a) if section 4 of part NN of chapter 55 of the laws of 2018 shall
40 not have taken effect on or before such effective date, then section two
41 of this act shall take effect on the same date and in the same manner as
42 such section of such chapter of the laws of 2018, takes effect; and
43 (b) if section 5 of part NN of chapter 55 of the laws of 2018 shall
44 not have taken effect on or before such effective date, then section
45 three of this act shall take effect on the same date and in the same
46 manner as such section of such chapter of the laws of 2018, takes
47 effect.
